How can I avoid probate of a will in New York?

In a recent post I mentioned that the probate of a will in New York may often be delayed if an heir is not provided for in the will. In such a case, the law allows the heir the opportunity to prove to the Court that the will should not be admitted to probate. Even if the disgruntled heir is ultimately unsuccessful, the delay and additional expenses can be considerable.

In order to avoid such a probate contest when an heir will be disinherited, people often establish “living trusts” or, in legal terms, “Revocable Inter Vivos Trusts.” Legal title to your property must be transferred to the trust. You are both the trustee and beneficiary of your trust and have complete control over and use of trust assets. Upon your death, your successor trustee, who you have appointed in the trust agreement, distributes trust property to your designated beneficiaries. If all of your property had been transferred to the trust, there will be no probate assets and no need to probate a will or bring an administration proceeding.

Is it always preferable to have a living trust instead of a will? Not necessarily. Setting up a living trust is often more expensive and more involved that signing a will. But in cases where probate of a will may be problematic, for example where you have disinherited an heir, thus inviting a probate contest or where your heirs are not easily ascertainable, in which case a costly and lengthy search for missing heirs would be required by the court, a living trust may be an appropriate solution.